America-Israel Patent Law Blog

The news outlets in Israel recently ran stories about the discovery of ancient copper smelting furnaces in what is today Beer Sheva (“ancient” meaning 6500 years old).  You can read about it here and here; the journal article that prompted the press release is here.  The general site was first discovered in the 1950’s; the current research was the result of excavations carried out in advance of building in the area. 

It was known that copper smelting at the time was conducted in small batches in crucibles; the researchers, from Tel-Aviv University, the Israel Antiquities Authority and the Geological Survey of Israel, found evidence of larger, furnace-like structures that were used for smelting larger quantities of copper ore.  Crucibles were normally used for a single-step process, but the furnaces were used in a two-step process which gave a better yield. 

As a patent practitioner, there were several aspects of the story that caught my eye.  The first relates to the fact that the furnaces were found in geographically spaced locations within the site.  Apparently all used ore from the same location about 100 km from the site, and all the furnace operators utilized the same basic process; but chemical analysis suggests that the process used with each furnace differed slightly from the process used at the other furnaces.  In other words, someone figured out the technology for the two-step process, and this knowledge was disseminated among a small number of people who maintained it as a trade secret amongst themselves (i.e. as a guild); but the individual operators of the furnaces then experimented with the process, trying to improve it, apparently without sharing their findings with each other, maintaining their own experiments as secrets. 

The maintenance of both knowledge of the copper smelting process as well as attempts to improve it as trade secrets should probably not be surprising: according to the researchers, metallurgy was the hi-tech of the day.  The ability work metal conferred military and other advantages (see, e.g. Samuel I 13:19 – according to Rashi, the Philistines knew how to work iron whereas the Israelites did not, and the Philistines kept it that way to assure their military advantage).  Although in the case of the copper smelted at the Beer Sheva sites, the metalworking was done by others elsewhere, and the copper implements themselves were likely more for ceremonial rather than utilitarian purposes, nevertheless you can’t make the implements without the raw materials, so the extraction process clearly was valuable to someone. 

Additionally, the fact that the basic process itself even existed is remarkable – who figured out that if you heat certain rocks at a high enough temperature, you could get copper (or other metals if you heat other rocks), and how did they discover that? 

I also ask myself, If patents had existed at that time, how might these processes have been claimed?  Nowadays we would specify the temperature(s), pressure(s), and composition(s) of the atmosphere(s) used, but 6500 it wasn’t possible to measure these variables, let alone to control them to the same degree to which they may be controlled today.  And today one might also claim the end product, e.g. on the basis of purity.  Back then, what would have been the test – hardness? Color?   

The disparate locations of the miners, the smelters, and the metalworkers is also interesting. In the situation in which the end products are of primarily ceremonial value, there wouldn’t necessary have been an advantage to consolidating the operations in close geographical proximity.  (And thus, had patent protection been available, the smelters of Beer Sheva might have foregone patent protection in Jordan where the ore was mined, if there weren’t competing smelting operations there…or perhaps they would have sought such protection, to ensure that competition didn’t start up there.  Or maybe they would have just maintained their processes as trade secrets.)  However, in the case in which end products were utilitarian, there may have been advantages to such geographical consolidation of at least two of the three steps.  And indeed, the researchers noted that in later periods in the area, it became standard to smelt the metal close to the place at which it was mined.  The variables to be taken into account in the economics of the production of goods apparently haven’t changed all that much over the years.